Shane v. Lowden

• Citation: 106 S.W.2d 956,232 Mo.App. 360
• Parties: VERA SHANE, ADMINISTRATRIX, ESTATE OF EDWIN SHANE, DECEASED, RESPONDENT, v. FRANK O. LOWDEN ET AL., TRUSTEES, FOR C. R. I. & P. RY. CO., APPELLANTS
• Decision Date: 24 May 1937
• Court: Court of Appeals of Kansas

106 S.W.2d 956

232 Mo.App. 360

VERA SHANE, ADMINISTRATRIX, ESTATE OF EDWIN SHANE, DECEASED, RESPONDENT, v. FRANK O. LOWDEN ET AL., TRUSTEES, FOR C. R. I. & P. RY. CO., APPELLANTS

Court of Appeals of Missouri, Kansas City

May 24, 1937

Appeal from Circuit Court of Cass County.--Hon. Leslie A. Bruce Judge.

REVERSED.

Judgment reversed.

Herman Epstein, Thomas C. Swanson and Sloane Turgeon for respondent.

Luther Burns, L. E. Durham, Hale Houts and I. M. Lee for appellant.

OPINION

REYNOLDS, J.--

This suit originated in the circuit court of Cass county. The petition was filed therein on April 16, 1935. Later, an amended petition was filed. The suit is by the plaintiff administratrix of the estate of her deceased husband, Edwin C. Shane, against the trustees of the Chicago, Rock Island & Pacific Railroad Company, to recover damages for the death of the said Edwin C. Shane on April 17, 1934, while employed by such trustees as a special agent or a special officer, as a result of alleged negligence and carelessness on the part of the defendants. From an adverse judgment in the sum of $ 5,000, the defendants appeal.

The suit is under the Federal Employers' Liability Act.

The plaintiff sues in her capacity of administratrix for the benefit of herself and the minor son of herself and the deceased.

The amended petition alleges that the deceased, Edwin C. Shane, was employed by the defendants in connection with the operation of an interstate train and that the defendants and the deceased were at the time of the injury to the deceased, from which he died, engaged and employed in carrying on interstate commerce.

It is conceded by the defendants that they and the deceased were engaged in interstate commerce at the time in question and that this action is governed by the Federal Employers' Liability Act.

The amended petition charges that, under the defendants' rules and generally established custom, the defendants and their servants owed to the deceased as one of its employees the duty (1) "to warn plaintiff's decedent when trespassers were observed, so plaintiff's decedent could protect himself against the violence of trespassers" and (2) "to refrain from cursing, abusing or aggravating trespassers and to refrain from threatening to strike them with clubs, flashlights or weapons."

The amended petition charges that the defendants negligently failed in both duties, as follows: ". . . defendants' agents, servants and employees negligently and carelessly failed to so warn plaintiff's decedent of the presence of said trespassers, and violated said custom and failed to exercise ordinary care for decedent's safety further by cursing said trespassers and precipitated a shooting affray by threatening to strike them with a flashlight and as a direct result thereof, under defendants' rules and custom and failure to exercise ordinary care as aforesaid referred to plaintiff's decedent was so injured as that he died shortly thereafter."

The amended petition further charges that "prior to his death as aforesaid the decedent was a well and healthy man twenty-seven (27) years of age, capable of and was earning a livelihood in the sum of approximately $ 175 per month; that he left surviving him plaintiff herein, his widow, and one son now five (5) years of age, Duane Shane, that because of the matters and things herein alleged said Vera and Duane Shane have been damaged in the sum of at least $ 50,000."

The plaintiff by her amended petition sought judgment against the defendants in the sum of $ 50,000.

The defendants' answer was a general denial and a plea of assumption of risk and a plea of contributory negligence.

The evidence shows that the deceased, Edwin C. Shane, was shot and killed in the railroad yards of the defendants at Bland, Missouri, while operating in connection with an interstate train of the defendants which had left St. Louis for Kansas City, Kansas, over their main line between such points, about 10:15 o'clock in the evening of the day upon which he was killed, by a negro named Willie Rowland. Rowland was one of a gang of negro merchandise thieves riding and operating on the defendants' night trains from St. Louis as far west as Bland, Missouri, over their said line.

The deceased was operating in connection with one Whitted, who was also operating under employment by the defendants as special agent. They were on the train in question under special orders for the purpose of protecting merchandise shipments in transit thereon against theft.

The evidence shows that Rowland and four other negroes, with him at the time he shot and killed Shane, by prearrangement boarded the defendants' train at St. Louis and, soon after it left St. Louis, came upon a refrigerator car in the train near the front end thereof, containing merchandise, and broke the seals thereon over one of the hatch doors in the roof thereof and entered the car through such door and and stole a lot of merchandise therein; that each of the gang took a portion of the merchandise and Rowland put his in a grip which he was carrying and the others wrapped theirs into packages; that, as the train drew to a stop at the station at Bland, Missouri, they emerged from the inside of the car to the roof with the merchandise which they had stolen. So far as the evidence discloses, when the train stopped at Bland, Whitted was seen walking along the top of the cars in the train toward the front end thereof, approaching the refrigerator car from which the burglars had emerged with their stolen merchandise and upon the top of which they were at the time. Whitted appears to have been engaged, as he walked, in throwing a flashlight on the seals of the merchandise cars, ostensibly to discover whether or not they had been broken, while the deceased, Shane, was on the ground on the south side of the car as the train was moving west. At least, that is where his presence was first detected. Whitted encountered the gang of negroes with their merchandise. As he came up to them, he spoke to them and said, "Move over, boys." As he was coming up and while he was probably a car's distance away, Rowland had one of the other negroes hand him a pistol, which the other negro had on his person. Rowland held it in his hand under his coat. When Whitted came up after saying, "move over, boys," he cursed Rowland (who at the time was endeavoring to get his pistol in a position to shoot) and asked him what he had in his grip and, at the same time, threw back his flashlight and reached over to take hold of Rowland's grip, when he was immediately shot by Rowland and was killed and fell on the top of the car, where his body was afterward picked up by the trainmen, after the train stopped at Eldon. After being shot by Rowland, Whitted cried out, "Oh, I'm shot." After having shot Whitted, Rowland immediately started to climb down between the end of the refrigerator car on which he was and the car next thereto and was fired on by the deceased, Shane, who was standing near on the ground. While descending, Rowland shot and killed Shane, after Shane had first shot at him.

The only persons present at the killing were the five negroes and the two officers who were killed. The negroes were apprehended. Rowland was convicted and executed for murder. The other four pleaded guilty to theft and were sentenced to two years in the penitentiary. The only evidence obtainable as to the circumstances of the shooting and killing was that given by two of the negroes, Willie Easley and James Goodrich.

It would appear that, for about two weeks prior to the shooting of Whitted and Shane, merchandise cars on the defendants' west-bound, night, freight trains out of St. Louis were being broken into and property was being stolen at some point between St. Louis and Eldon, Missouri, the first division point west of St. Louis. The seals were broken, upon both box cars with side doors and refrigerator cars with hatches or doors in the roofs; and the cars were entered through said doors; and the merchandise therein was stolen and taken therefrom. The deceased, Shane, had, in company with special agent Steele, also operating with the defendants' railroad and in its service, gone to Eldon on several occasions for the purpose of investigating car burglaries and thefts and discovering the thieves and had also, on occasions, accompanied other special agents upon the same errand.

It appears that it was a rule, or at least customary, for two special agents or officers to work together for the purpose of protecting merchandise and apprehending and catching car thieves (as Shane and Whitted were working) in instances where thieving from freight trains was known or suspected to be going on. Where two are thus working together, it is usual that one works on one side of a car and the other on the other side or one on one side and the other on the top. It is usual for them to confer at the end of each car; and each, at all times, is supposed to know where the other is.

On the night in question, Whitted and Shane were assigned by their superior officers in the department to the duty of riding the defendants' west-bound, night, freight train out of St. Louis for the purpose of protecting merchandise in the various cars in said train. They were met by the conductor of the train as it was about to leave St. Louis, whom they advised of their mission and advised that they would ride the train to take care of the seals and guard the merchandise. Shane said to him at the time, "And be careful as there might be something flying through the air." Shane and Whitted were of equal rank in the service; both had seen service for a number of years; and both were competent and efficient.

The plaintiff's evidence was directed to the duty...